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Mount v. Colvin

United States District Court, W.D. Kentucky, Louisville Division

February 9, 2015

CAROLYN W. COLVIN, Acting Commissioner of Social Security, DEFENDANT


H. BRENT BRENNENSTUHL, Magistrate Judge.


Plaintiff Shon G. Mount ("Mount") brought this action pursuant to 42 U.S.C. § 405(g) to obtain judicial review of an administrative decision of the Commissioner of Social Security denying Mount's application for disability insurance benefits. Both the Plaintiff (DN 14) and Defendant (DN 15) have filed a Fact and Law Summary.

Pursuant to 28 U.S.C. § 636(c) and Fed.R.Civ.P. 73, the parties have consented to the undersigned United States Magistrate Judge conducting all further proceedings in this case, including issuance of a memorandum opinion and entry of judgment, with direct review by the Sixth Circuit Court of Appeals in the event an appeal is filed (DN 10). By Order entered January 30, 2014 (DN 11), the parties were notified that oral arguments would not be held unless a written request therefor was filed and granted. No such request was filed.


Mount first applied for disability insurance benefits ("DIB") and supplemental security income benefits ("SSI") on October 17, 2007, alleging a disability beginning on April 20, 2006 (Tr. 114). That application was denied at the initial and reconsideration levels, and after a hearing, it was ultimately denied by Administrative Law Judge Paul C. Armitage on May 12, 2010 (Tr. 114, 124). ALJ Armitage adjudicated Mount's disability for the period from April 20, 2006 through May 12, 2010, and found that Mount was not disabled.

Mount has filed a second application for DIB and SSI. The protective filing date for Mount's second application is June 1, 2010, prior to his date last insured of December 31, 2011 (Tr. 25, 246). He alleges disability beginning on May 13, 2010, due to Scheuermann's kyphosis, degenerative disc disease, cervical mid-back and lower back muscle spasms, rotation of the spine, compressed vertebrae, restless leg syndrome, thoracic spine and spurring height loss, panic attacks, bipolar disorder, and mood disorder anxiety (Tr. 245, 250). Mount's application was denied initially (Tr. 134) and upon reconsideration (Tr. 146). Subsequently, at Mount's request, an administrative hearing was conducted before Administrative Law Judge William C. Zuber on January 31, 2012, in Louisville, Kentucky (Tr. 43). Mount and his attorney, Alvin Wax, attended the hearing (Id.). Also present and testifying was Sharon Lane, an impartial vocational expert (Id.).

At Step One, ALJ Zuber found that Mount has not engaged in substantial gainful activity since May 13, 2010, the alleged onset date, through his date of last insured, December 31, 2010 (Tr. 28). At Step Two, the ALJ found that Mount's thoracic kyphosis, lumbar scoliosis, obesity, panic disorder, and intermittent explosive disorder constituted severe impairments (Id.). At Step Three, the ALJ found that Mount's impairments did not meet or medically equal one of the listed impairments in 20 C.F.R Part 404, Subpart P, Appendix 1 (Id.). At Step Four, the ALJ assigned Mount a residual functional capacity ("RFC") with certain modifications, stating:

[t]he claimant has the residual functional capacity to perform sedentary work as defined in 20 C.F.R. 404.1567(a) and 416.967(a) except he is limited to simple, unskilled, routine, non-fast paced work allowing a sit/stand option. He can occasionally climb ramps and stairs, stoop, crouch, crawl, kneel, overhead reach, and use lower extremity foot controls. He should avoid climbing ladders, ropes and scaffolds. He can tolerate occasional casual non-confrontational contact with co-workers and supervisors but should avoid the general public. Any changes in the work routine/environment should be rare and gradually introduced. Moreover, the claimant can sustain concentration, persistence and pace for periods of 2 hours at a time.

(Tr. 30). This RFC adopted by ALJ Zuber is generally consistent with the RFC from the 2010 ALJ decision, [1] since ALJ Zuber determined that the prior decision and its RFC determination were binding upon his adjudication by res judicata and the holding of Drummond v. Comm'r of Soc. Sec., 126 F.3d 837 (6th Cir. 1997) (Tr. 30). Based on this RFC, ALJ Zuber determined Mount could not perform any of his past relevant work (Tr. 36). However, at Step Five, the ALJ relied on the Medical Vocational Guidelines, 20 C.F.R. Part 404, Subpart P, Appendix 2, in conjunction with the vocational expert's testimony to find that there are jobs that exist in significant numbers in the national economy that Mount can perform (Tr. 37).

Accordingly, on May 9, 2012, the ALJ issued an unfavorable decision, finding that Mount was not disabled (Tr. 38). The Appeals Council declined to review the ALJ's decision on August 22, 2013 (Tr. 1-3). At that point, the ALJ's decision became the final decision of the Commissioner. 20 C.F.R. §§ 404.955(b), 404.981, 422.210(a); see 42 U.S.C. § 405(h) (finality of the Commissioner's decision). Mount now seeks judicial review in this Court (DN 1).


Review by the Court is limited to determining whether the findings set forth in the final decision of the Commissioner are supported by "substantial evidence, " 42 U.S.C. Section 405(g); Cotton v. Sullivan, 2 F.3d 692, 695 (6th Cir. 1993); Wyatt v. Sec'y of Health & Human Servs., 974 F.2d 680, 683 (6th Cir. 1992), and whether the correct legal standards were applied. Landsaw v. Sec'y of Health & Human Servs., 803 F.2d 211, 213 (6th Cir. 1986). "Substantial evidence exists when a reasonable mind could accept the evidence as adequate to support the challenged conclusion, even if that evidence could support a decision the other way." Cotton, 2 F.3d at 695 (quoting Casey v. Sec'y of Health & Human Servs., 987 F.2d 1230, 1233 (6th Cir. 1993)). In reviewing a case for substantial evidence, the Court "may not try the case de novo, nor resolve conflicts in evidence, nor decide questions of credibility." Cohen v. Sec'y of Health & Human Servs., 964 F.2d 524, 528 (6th Cir. 1992) (quoting Garner v. Heckler, 745 F.2d 383, 387 (6th Cir. 1984)).


The Social Security Act authorizes payment of Disability Insurance Benefits and Supplemental Security Income to persons with disabilities. 42 U.S.C. §§ 401 et seq. (Title II Disability Insurance Benefits), 1381 et seq. (Title XVI Supplemental Security Income). The term "disability" is defined as an

[i]nability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than twelve (12) months.

42 U.S.C. §§ 423(d)(1)(A) (Title II), 1382c(a)(3)(A) (Title XVI); 20 C.F.R. §§ 404.1505(a), 416.905(a); Barnhart v. Walton, 535 U.S. 212, 214 (2002); Abbott v. Sullivan, 905 F.2d 918, 923 (6th Cir. 1990).

In evaluating a claim of disability, an administrative law judge conducts a five-step analysis. See 20 C.F.R. §§ 404.1520, 416.920. In summary, the evaluation proceeds as follows:

1) Is the claimant engaged in substantial gainful activity?
2) Does the claimant have a medically determinable impairment or combination of impairments that satisfies the duration requirement and significantly limits his or her ability to do basic work activities?
3) Does the claimant have an impairment that meets or medically equals the criteria of a listed impairment within Appendix 1?
4) Does the claimant have the residual functional capacity to return to his or her past relevant work?
5) Does the claimant's residual functional capacity, age, education, and past work experience allow him or her to perform a significant number of jobs in the national economy?

Id. Here, the ALJ denied Plaintiff's claim at the fifth step.

Mount's arguments center mostly on the ALJ's RFC determination from Step Four of the sequential evaluation process (DN 14, Plaintiff's Fact & Law Summary at p. 2-10). Specifically, Mount claims that the ALJ's RFC determination is not supported by substantial evidence based on a failure to consider the record as a whole (Id. at p. 2). The Commissioner's response is two-fold, arguing that (1) Mount fails to show new and material evidence showing his condition worsened after the previous ALJ's decision finding that he was not disabled; and (2) substantial evidence supports the ALJ's RFC determination (DN 15, Defendant's Fact & Law Summary at p. 5).

A. Drummond Analysis

In Drummond the Sixth Circuit Court of Appeals established "that the principles of res judicata can be applied against the Commissioner." 126 F.3d 837, 842 (6th Cir. 1997). Accordingly, "[w]hen the Commissioner has made a final decision concerning a claimant's entitlement to benefits, the Commissioner is bound by this determination absent changed circumstances." Id . Furthermore, "[a]bsent evidence of an improvement in a claimant's condition, a subsequent ALJ is bound by the findings of a previous ALJ." Id . (citing Lively v. Sec'y of Health & Human Servs., 820 F.2d 1391 (4th Cir. 1987)). In Drummond, the Sixth Circuit held, through the application of res judicata, that the Commissioner was bound by its prior determination that the ...

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